Under California PC 261 rape happens when a person uses fraud, threats, or force to get another person to have non-consensual sex with them. Rape involves going against another person’s will, although the other person doesn't need to obstruct to show a lack of consent. Rape is among the most serious felony charges under California law. Its conviction can involve hefty fines, a conviction of 8 years in prison, and mandatory registration as a sex offender.

Rape accusation is a serious case that requires the help of a skilled rape defense lawyer. If you are facing rape charges in Bakersfield, CA, our experienced attorneys at Koenig Law Office are standing by, ready to help you fight for your rights and freedom.

The Legal Definition of Rape 

There are different elements that a prosecutor must prove for you to be convicted of rape beyond a reasonable doubt. These elements include:

  • You engaged in sexual intercourse with someone else
  • You were both not married to each other
  • The other party did not agree/consent to the sexual acts
  • You used either of the following to get the other person to engage in sexual intercourse with you:
  • Fraud
  • Retribution
  • Fear of bodily harm
  • Menace
  • Duress
  • Violence, or
  • Force

Note that for you to be convicted of rape, the alleged victim must be alive when the offense occurred.

Below is a detailed definition of the above elements.

Sexual Intercourse

Sexual intercourse is defined under this statute as any form of penetration (regardless of how slight it may be) by the penis in the vagina or genitals. The absence of ejaculation does not mean there was no sexual intercourse. Penetration of the vagina with or without ejaculation is considered sexual intercourse.

Consent

Consent is one of the major elements of rape. For you to be convicted under this statute, the victim must not have consented to have sexual intercourse. Consent, in this case, is defined as when someone acts freely and voluntarily and is aware of the acts.

Note that someone can consent to the acts at first, change their mind in the middle, and no longer consent. This can be shown if:

  • The alleged victim uses actions or words to communicate no consent to the defendant
  • A normal and reasonable individual would have known that the victim’s words or acts meant no consent
  • The defendant ignored the victim’s words and acts and continued with the act

The alleged victim doesn't need to fight back or physically resist showing a lack of consent. Words or acts are enough. For instance, Paula and her fiance Mike get into a heated argument in a club. Paula walks out, and on her way, she meets Peter, who invites her to his apartment to have fun. The two begin to engage in sexual activities, and during the act, Paula feels bad for her fiance and asks Peter to stop. She says to him, “can we please stop this, I don’t want to have sex with you anymore.” Peter ignores her, and he continues the act. If Paula reports this to the authorities, Peter will be guilty of rape since Paula had consented at first, but she later withdrew her consent. She used words that a reasonable person would have known that she no longer consents to the act.

There are also circumstances under the law that may show no consent. For instance, Angie works as a sex worker. Mike drives to where she is, and they agree to have sexual intercourse at a specific price. Mike drives to the basement of his house, and they both get to the backseat. He pulls out a gun and points it at Angie, and tells her that he will kill her if she does not agree to do the things he tells her. Angie asks him not to hurt her and begs him to let her go. Mike ignores her cry, and he continues with the acts as she cries. If Angie reports this to the police, Mike will be guilty of rape since she said no or stopped, enough for a reasonable person to know that she did not consent.

Use of Violence or Force

To be convicted of rape, the prosecutor must prove that you used some type of force or violence or other means to have sexual intercourse with another person. Every term has its specific meaning under the law. For instance:

  • Violence — a behavior that is intended to kill or cause bodily injury
  • Force — using physical force to overcome the will of another party
  • Duress — threats that are enough to force a person into engaging in sexual intercourse
  • Fraud — using tricks or deceit to have another person have sex with you
  • Retribution —revenge or payback
  • Fear— making another person afraid.

People Who Cannot Consent

There are certain people who cannot or are not able to consent to sexual acts. This means that you will automatically be ‘guilty of rape if you are accused of having sex with these people. The people who the law believes are not capable of consenting include:

  • An unconscious person
  • Someone suffering from a mental disorder
  • A person who is very intoxicated

Penalties for Rape in California

Rape is always charged as a felony under California law. If convicted of rape, you are likely to face the following penalties:

  • Felony probation
  • Detainment in state prison for eight years

You may also face additional five years imprisonment if the alleged victim sustained great bodily injury from the crime.

Your sentencing may also be increased if:

  • The victim was below fourteen years. (you will face additional thirteen years imprisonment)
  • If the victim was below eighteen years (you will face additional eleven years in prison)

You will also be entitled to mandatory lifetime registration as a sex offender.

Does a Rape Conviction Have Immigration Consequences?

Yes. Being convicted of rape will have negative impacts on your immigration status. In California, rape is a crime involving moral turpitude, and if non-citizen commits such a crime, they risk being marked inadmissible or deported.

Can a Person Convicted of Rape Get an Expungement?

A rape conviction is only expunged if the defendant received felony probation and not prison time. If the defendant was awarded a prison sentence, their rape conviction can not be erased.

Note that you will also lose your gun rights if you are convicted of rape since it is a felony crime.

Can Sexual Assault Victims Sue For Rape?

California law allows rape victims to sue their assaulters for their damages under personal injury law. These damages may include:

  • Punitive damages
  • Pain and suffering
  • Lost earning capability
  • Lost wages
  • Psychological counseling
  • Medical bills

Even if the defendant was not convicted in court, the victim can still sue their rapist for the damages experienced from the assault.

Legal Defenses

There are defenses that a defendant can use to fight their rape charges under California law. The most common defenses include:

  • Consent — You can't be convicted of rape if the alleged victim had consented. You can argue that you reasonably believed that the other person consented to the sexual intercourse. For example, Peter invites Ana o his apartment for dinner, and the two begin to make out, which leads to them having sex. During the act, Ana feels guilty for betraying her boyfriend, and she thinks it's better to stop and go home, but she does not say anything or act to alert Peter. In this case, Peter cannot be convicted of rape since he reasonably believed that Ana had consented to the act.
  • False accusation — It is not uncommon that you could be accused falsely of a rape crime. The accuser could be acting out of revenge, jealousy, or anger. Your criminal defense attorney may be able to help you check the accuser’s mental state, their background and dig deep about their true intentions.
  • No sexual intercourse — There must be sexual intercourse between both parties. As stated above, there must be penetration in the vagina by the penis for there to be sexual intercourse. You can argue that even though you engaged in some acts with the alleged victim, there was no sexual intercourse. You could have only romanced with no penetration.
  • Insufficient evidence — To be convicted of rape, the prosecutor must prove all the above-stated elements. At times, your accuser may provide evidence that is not enough to have you convicted. You can use the help of a skilled criminal defense attorney to try to find any missing pieces of evidence and use them to fight your charges.

Below are questions to help you understand rape cases better.

My friend was drunk when we slept together and she wanted to have sex with me, why am I facing rape charges?

If the alleged victim had consented, you cannot be convicted of rape. However, an intoxicated person cannot be able to consent. Even though she consented, the law believes that an intoxicated person cannot give informed consent. However, an experienced defense attorney may be able to investigate and find out if your accuser was fully intoxicated or if they were just a little intoxicated and able to consent. 

My accusor consented to have sex with me but she is now accusing me of rape since aI refused to date her. Will I be imprisoned?

It is not a wonder that some people use rape accusations to try blackmailing you. If this happens to you, reach out to a skilled criminal defense attorney to help you fight your charges. Your attorney may be able to come up with evidence showing that your accuser is lying.

I had sex with a person known to sleep around with other people. When we had sex, she didn’t seem to like it but she did not say a word. However, weeks later, she is accusing me of rape. What should I do?

For you to be convicted, your accuser must have given you a signal either by words or actions to show that she did not consent anymore. Since your accuser did not say anything or act in a way to show no consent, you can use the help of your criminal defense attorney to prove that your accuser did not inform you that she did not consent anymore.

Related Offenses 

There are offenses under California law involving sex and sex abuse and are often charged with or alongside rape. These offenses include.

Statutory Rape

Statutory rape is defined under PC 261.5 as when a person engages a minor below 18 years in sexual intercourse. The law state that a minor below eighteen years is not capable of consenting to sexual intercourse, so you can still be convicted even if the minor consented to the acts.

To be convicted under Penal Code 261.5, there are certain elements that the prosecutor must prove beyond a reasonable doubt. They include:

  • There was sexual penetration between you and another person
  • You and the person you had sexual intercourse with were not married at the time the offense happened
  • The other person was a minor below 18 years at the time the offense happened

Unlike in a rape case, the prosecutor must not prove that force or fraud was used to have sex or that there was no consent from the alleged victim. Age is the most crucial element in statutory rape cases.

Under the law, someone is said to be a year older at 12:01 am on their birth date.

Penalties for Statutory Rape

This offense is considered a wobbler under California law, meaning it can be charged as a felony or a misdemeanor. There are factors that help the prosecutor determine how they will charge this offense. These factors include:

  • If the defendant was less than three years older than the victim at the time the violation occurred, the prosecutor would charge this as a misdemeanor
  • If the defendant was more than three years older than the victim at the time the offense occurred, the prosecutor could charge it as a felony or misdemeanor
  • If the defendant was above 21 years and the victim was below 16,  the charge could be a misdemeanor or a felony, but in most cases, it is charged as a felony

If charged with a misdemeanor for statutory rape, the penalties include:

  • Maximum fines of $1,000b
  • Detainment in county jail for one year, and
  • An informal probation

On the other hand, if charged with a felony, you are likely to face the following:

  • Maximum fines of $10,000
  • Detainment in state prison for up to four years
  • Formal probation

Sexual Battery

Sexual battery is defined under Ca Penal code 243.4 as when a person touches another person’s private parts with the intent to sexually arouse, gratify, or abuse them or the other person without consent from the other party.

This offense can be charged as a misdemeanor or a felony. It is charged as a felony if:

  • The victim was unaware of the touching since the defendant lied to them that the touching was for professional reasons like a medical check-up.
  • The victim was restrained illegally
  • The victim was disabled or medically incapable, or
  • The defendant forced the victim to touch their private parts or masturbate in any of the above situations

Sexual Battery Penalties

If charged with a misdemeanor without aggravating factors, you are likely to face the following penalties:

  • Maximum fines of $2,000 and $3,000 if the alleged victim was your employee
  • Detainment in county jail for six months
  • Informal probation for five years, including the following:
  • A batterer’s education program
  • Community service
  • Tier one sex offender registration for ten years

If charged with a felony, you are likely to face the following:

  • Maximum fines of $10,000
  • Detainment in state prison for up to four years and an additional year if the victim sustained great bodily injury
  • Felony probation
  • Tier three sex offender registration for life

Forcible Sexual Penetration

California PC 289 defines this crime as using force or threats to penetrate foreign objects into the vagina or anus without consent from the other person. Note that you can be convicted for this offense if you:

  • Commit a sexual penetration on an unconscious person
  • Commit sexual penetration on a person who cannot consent due to their mental or physical disability, or
  • Commit sexual penetration on a very intoxicated person

Penalties For PC 289

Sexual penetration with a foreign object is always charged as a misdemeanor. If convicted of forcible sexual penetration, you are likely to face the following penalties:

  • Maxim fines of $10,000
  • Detainment in state prison for eight years
  • Felony probation

Find a Bakersfield Criminal Defense Attorney Near Me

A rape conviction carries severe penalties that can have lifelong effects on your life. If you have been accused of rape, the most important thing you should do s seek help from an experienced criminal defense attorney. Our lawyers at Koenig Law Office have experience defending those facing rape charges in Bakersfield, California. Call us today at 661-793-7222 and talk to our skilled and dedicated sex defense lawyers.